Remanded: An Order of Sole Custody and Over $20,000 In Sanctions Due to The Court’s Failure to Allow a Custody Expert to Be Cross Examined
Docket No. A-0464-21
Decided February 2, 2023
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey remanded an order of sole custody and over $20,000 in sanctions due to the Court’s failure to allow a custody expert to be cross examined.
In R.G. v. K.G., The parties were divorced on October 17, 2016, after entering into a marital settlement agreement (MSA), which contained a shared parenting schedule for the two children. For a period of time prior to the beginning of the COVID-19 pandemic in March 2020, the children began to express a desire to spend more time with plaintiff. This issue only worsened when the pandemic started. The parties disputed the cause of the children’s estrangement from defendant.
On March 13, 2020, the trial court denied plaintiff’s motion for increased parenting time. The court also denied a cross-motion filed by plaintiff, who was living in Pennsylvania, to be able to pick the children up early on days when he was not working.
On April 22, 2020, plaintiff filed a motion seeking a change of custody, for the court to interview the children, and for the children to start therapy in an attempt to reestablish the mother-daughter relationship and commence custody evaluations. On May 13, 2020, defendant filed a cross-motion seeking to enforce the MSA parenting schedule and for the court to select a reunification therapist. On May 29, 2020, the court denied plaintiff’s request for a change in custody, ordered family reunification therapy counseling, and ordered plaintiff to continue to encourage the children to see defendant. On June 9, 2020, the court appointed Joseph Racite, Ph.D., to commence reunification therapy with the family.
On September 14, 2020, defendant filed an OTSC compelling the youngest child to attend school in New Jersey and not in Pennsylvania where plaintiff resided, that Dr. Racite provide a report to the court, that New Jersey retain jurisdiction over the children, and for counsel fees. On September 23, 2020, the court denied the application to compel the children to attend school in New Jersey, ordered Dr. Racite to provide a report, ordered New Jersey would retain jurisdiction, and denied counsel fees.
On October 27, 2020, the court provided Dr. Racite’s report to counsel under a protective order. Dr. Racite recommended defendant’s parenting time be reinstated no later than January 2, 2021, along with several other recommendations. Parenting time issues during this period continued to be problematic.
On December 21, 2020, the trial court, in large measure, adopted the recommendations of Dr. Racite. The order provided for increased parenting time for defendant and required plaintiff to “support and encourage” the children to attend parenting time. The court also noted that sanctions would be imposed on plaintiff in the amount of $100 for each time the children’s parenting time with defendant was not honored and when the children failed to text or call defendant at specific times during plaintiff’s parenting time.
Both parties filed additional motions to change parenting time and for other relief. The court entered an order on February 26, 2021, scheduling a “conference” with Dr. Racite. During this conference, after addressing the Court’s questions, counsel were only permitted to ask one additional question each despite the request for cross examination.
On March 10, 2021, the court found plaintiff had violated litigant’s rights and ignored prior orders of the court. The court entered an order granting defendant make-up parenting time and awarded unobstructed parenting time for thirty days. The court also sanctioned plaintiff $2,500 for defendant’s missed parenting time, $2,200 for missed telephone calls, and $1,900 for missed text messages since December 21, 2020. The court further awarded defendant counsel fees in the amount of $2,235.
The parenting time issues continued, and defendant filed a motion to enforce litigant’s rights and for sole legal and physical custody of the children, along with various other forms of relief. On June 25, 2021, the court stated that “at its core, the present motion is simply [defendant’s] application to enforce the court’s prior orders and [plaintiff’s] application to change them.” The court granted defendant’s application and awarded sole custody to defendant and suspended plaintiff’s in person parenting time. The court further sanctioned plaintiff $23,500 for failing to comply with prior orders regarding defendant’s entitlement to parenting time, phone calls, and text messages with the children.
This appeal followed. The Appellate Division reversed, finding that the failure to allow counsel to question Dr. Racite regarding his report is a fundamental flaw and necessary prior to the Court issuing the order. Remand was ordered to allow this to occur and the Appellate Division vacated the sole custody and sanction award to allow this to occur.
This court opinion is important to understand family judges have a tremendous amount of power and ability to enforce court orders, including, as provided above, changing custody and awarding monetary sanctions. Even if you disagree with the Court Order, it’s vital to abide by that order or you could face penalties like those above. Even though the awards mentioned above were vacated on remand, the trial court could reimpose those orders if the Court finds that the additional questions for Dr. Racite do not change the court’s opinion.
If you have questions about custody, parenting time, divorce, prenuptial agreements, marital home, alimony, child support, equitable distribution, or mediation, contact the experienced matrimonial divorce attorneys at Hark & Hark today.
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